Official Opinion 99-11

June 30, 1999

To:

Chairperson Claims Advisory Board

Re:

Beginning July 1, 1999, 1999 Ga. Laws 798, amending O.C.G.A. § 28-5-85 and O.C.G.A. § 28-5-104, prohibits the Claims Advisory Board from recommending compensation to an inmate injured while in the custody of the Department of Corrections.

You have requested an opinion regarding the practice of inmates filing Notices of Claims against the state through the Claims Advisory Board (“the Board”) in light of recently enacted 1999 Ga. Laws 798 which amended O.C.G.A. § 28-5-85 and § 28-5-104 (“the Amendment”). You have asked for an opinion as to the following questions:

1. Whether the addition in O.C.G.A. § 28-5-104(a) of “(4) Any person who is or was at the time of the alleged loss an inmate in the custody of the Department of Corrections” prevents inmates from filing claims for compensation with the Claims Advisory Board in an amount over $500.00?

The Amendment modifies O.C.G.A. § 28-5-104(a) to add paragraph (4) to prohibit the Board from recommending that compensation be awarded to “[a]ny person who is or was at the time of the alleged loss an inmate in the custody of the Department of Corrections.” The Amendment clearly indicates the legislative intent that the Board NOT recommend compensation be awarded to an inmate injured while in the custody of the Department of Corrections. Therefore, the Amendment precludes the Board from recommending compensation to inmates who have allegedly sustained injury or property damage giving rise to a claim against the state while incarcerated by the Department of Corrections.

Additionally, the Amendment modifies O.C.G.A. § 28-5-85(a) related to payments under $500.00 and incorporates the prohibitive modifications set forth in O.C.G.A. § 28-5-104(a):

Effective November 1, 1982, when the total amount of a claim against the state is $500.00 or less, and the claim is not of a type excluded from a recommendation for compensation by subsection (a) of Code Section 28-5-104, the Claims Advisory Board shall be authorized to direct the state department or agency affected by the claim to pay the claimant such amount, not exceeding $500.00, as may be authorized by the Claims Advisory Board pursuant to the authority of this Code section.

The initial rule of statutory construction is to look at the legislative intent and to construe statutes to effectuate that intent. O.C.G.A. § 1-3-1(a). In construing a statute, the courts must “try to effectuate the intent of the legislature as discerned from the act as a whole.” Meinken v. Burgess, 262 Ga. 863, 865 (1993). The intent of the General Assembly will control over the literal meaning of those terms which appear in the statute. New Amsterdam Cas. Co. v. Freeland, 216 Ga. 491, 495 (1960).

Based upon the foregoing, it is my opinion that the Amendment prohibits the Board from recommending compensation to inmates injured while in the custody of the Department of Corrections regardless of whether the claims are for under $500.00 or otherwise. You have next requested an opinion as to the following question:

2. As the effective date of the amendment is July 1, 1999, is the final date for filing inmate claims June 30, 1999 or June 30, 2001?

The prohibition in the Amendment against recommending compensation to inmates injured while incarcerated is effective July 1, 1999. See O.C.G.A. § 1-3-4(a). The Amendment is directed to the Board’s ability to make recommendations. As such, effective July 1, 1999, regardless of when the injury occurred or when the claim was filed, the Board may not recommend compensation for an inmate injured while in the custody of the Department of Corrections.

While the Constitution generally forbids retroactive laws which injuriously affect the vested rights of citizens, see Goldrush II v. City of Marietta, 267 Ga. 683, 693 (1997), there is no vested property right to receive compensation by the Board. Claims recommended by the Board are discretionary in nature precluding any entitlement to a recommendation. "[T]o have a property interest . . ., a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Goldrush II v. City of Marietta, 267 Ga. at 695, quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). "Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Williams v. Housing Auth. of Columbus, 158 Ga. App. 734, 736 (1981), quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). "The term 'vested rights' means ‘interests which it is proper for (the) state to recognize and protect and of which (the) individual cannot be deprived arbitrarily without injustice.’" Recycle & Recover, Inc. v. Georgia Bd. of Natural Resources, 266 Ga. 253, 254 (1996). Since the provisions for filing a claim with the Board do not create a property interest, there is no property interest to be protected by the state.

In summary, it is my official opinion that beginning July 1, 1999, 1999 Ga. Laws 798, amending O.C.G.A. § 28-5-85 and O.C.G.A. § 28-5-104, prohibits the Board from recommending compensation to an inmate injured while in the custody of the Department of Corrections.